Monday, July 27, 2009

We hope this is an unnecessary post but since you never know, here it goes. RA 8750[1] is short and so could be your life if you don’t follow it.

Mandatory Requirements

The following rules are a must:

The driver and front seat passengers of a motor vehicle are required to wear their seat belts while inside a vehicle with running engine on any road or thoroughfare.So even if you’re in slow traffic or at a standstill, this rule still applies.

"Front seat passengers" include i) in the case of public utility jeepneys (PUJs), those seated at the right side beside the driver; and ii) in the case of public utility buses (PUBs) and special public service vehicles such as school services and the like, those seated at the right side beside the driver and those on the first row immediately behind the driver.Bet you didn’t know they had to wear seatbelts too.Further bet no one in the country follows this.

Back seat passengers in private vehicles are required to wear their seat belts at all times.

Children from ages 6 years and below are prohibited from sitting in the front seat of any running motor vehicle.

Drivers of public motor vehicles are required to immediately inform and require the front seat passengers to wear seat belts.Passengers, front or back, who refuse to wear seat belts shall not be allowed to continue the trip.

a)For failure to wear the seat belt and/or failure to require his passengers to wear seat belts, a minimum fine of P100 but not to exceed P1,000 for the first violation; a minimum of P200 but not to exceed P2,000 for the second violation; and a minimum of P500 but not to exceed P5,000 and suspension of driver's license for a period of 1 week for the third and succeeding violations;

b)And the public motor vehicle operator, for failure to require passengers to wear seat belts, a minimum fine of P300 but not to exceed P3,000 for every violation; and

2)On any manufacturer, assembler, importer and distributor for every unit found without seat belts installed prior to its distribution to the public, a minimum fine of P5,000 but not to exceed P10,000 and suspension of the license to manufacture, assemble, import or distribute for a period of 1 year for the first violation; a minimum fine of P10,000 but not to exceed P20,000 and suspension of the license to manufacture, assemble, import or distribute for 2 years for the second violation; and a fine of P20,000 but not to exceed P50,000 and suspension of the license to manufacture, assemble, import or distribute for a period of 5 years for the third violation.

Now the penalties may be insignificant but the risks to life and limb are not, so again, Buckle up!

Tuesday, July 21, 2009

First of all, we’re not talking about a distributor acting as an agent of the manufacturer who is paid a salary/commission and is not liable for unsold stock (among other things). Of course, if the distributor who is not an agent can get the goods only on consignment that would be preferable as he would only have to pay based only on actual sales and return unsold stock.

In any case, this discussion is about a stand-alone distributor who buys the goods at a discount, sells them at a profit and is liable for any problems relating to distribution (e.g., delay in delivery to customers). This is about a distributor who directly contracts with the consumer.The nature of his business is akin to that of a wholesaler.

So why become a distributor? Well, if you like a certain product which you can’t make and you think there’s a good market for it and you believe you can sell it and do good business as a result then you offer to become the product’s distributor in the market you’ve targeted.

And why would you want a distributor? Well, if you don’t have the funds for marketing and delivery to retailers or consumers, then you will need a distributor. It might be best for you to just stick to making your product and maintaining its quality without the headaches of dealing with direct costumers.

There are 2 basic types of distributorships:1) exclusive (or sole), i.e., there is only 1 distributor within a given territory; and 2) non-exclusive i.e., there are several distributors (which may even include the manufacturer) within a given territory.

Exclusivity can work both ways.The manufacturer might prohibit the distributor from selling a competitor’s goods and/or from selling beyond the given territory.

You can fool around with the terms of exclusivity or non-exclusivity. You can even have partial or selective exclusivity, in terms of territory or goods.

Products, Supply and Delivery

A detailed description of the goods covered by the distributorship may avoid confusion between the parties in the future.Are there different types of products?Are they perishable?When do they expire?Are they fragile? How are they packaged? Can they be re-packaged? How should they be handled? Will the distributorship cover future products?

What’s the availability of the supply?What is the schedule for ordering? Will samples or demonstration models be provided for customer testing?Will a minimum order be required? What happens when minimum supply/order requirements are not met?

Do the goods need to be shipped to the distributor?How often?Who absorbs shipping costs and other risks during delivery to distributor?Upon delivery to distributor, what are the inspection procedures? What happens when there is a delivery shortage or there are defective or damaged products?When does ownership pass on to the distributor?When can orders be cancelled?

It’s best to clear up as many concerns as possible and as early as possible.

Payment

Precise terms and conditions of payment should be the aim.Are prices fixed or will they fluctuate depending on market conditions? Penalties in case of payment delays are advisable if you’re the manufacturer.

If you’re the distributor, you should ensure that, despite all possible payments, you will still make a profit. In any case, it is the essence in a distributorship agreement that distributor’s purchase price of the goods be much lower than market price.

Warranties and Liabilities

Product warranties are important to clarify in a distributorship agreement since the manufacturer has no contract with the customer, only the distributor does.Thus, warranties against defects, return of defective products, and even after-sales service (including provision for spare parts or other accessories) must be made clear, particularly the party who is responsible therefor.

The customer may look for relief in case of defective products so the parties need to assign liability beforehand.

Advertising and Marketing

The distributor would want to advertise himself as an authorized distributor, especially if he is an exclusive distributor.Consequently, he would want to use the trademarks/trade names (and relevant advertising material) in all activities to promote the sale of the products.

On the other hand, manufacturer might want to first approve all promotional material prior to their use and impose other restrictions on such use.

The parties should clarify who retains intellectual property rights.The manufacturer would wish to reserve the rights to his brand name and logos for example.

Sale

And, the manufacturer should set the standard by which the distributor should sell the goods or, better yet, set a minimum sales quota for a given period.

That’s all for now, folks.Remember these are just general thoughts on the distinguishing features of a distributorship agreement.If you want the real thing, though, you will need to hire lawyers like us =)

Saturday, July 11, 2009

Boy George! The Philippine military just can’t stop!Now a Filipino-American has accused them of abducting and torturing her.

Now why would someone lie about our military torturing her?What would she gain by going public – international even – with her allegations?Everyone knows what a cruel dictatorship can do, why risk its wrath?

Let’s say we forget about her story for the moment and see what others have said in the past.

“Since 2001 the number of politically motivated killings … has been high and the death toll has mounted steadily. These killings have eliminated civil society leaders, including human rights defenders, trade unionists, and land reform advocates, as well as many others on the left of the political spectrum … those killed appear to have been carefully selected and intentionally targeted. The aim has been to intimidate a much larger number of civil society actors, many of whom have … been placed on notice that the same fate awaits them if they continue their activism.”

The report was made by the UN Special Rapporteur (UNSR) after visiting the country, interviewing “key Government officials, including the President, the Cabinet Secretary [sic], the Secretaries of Foreign Affairs, Justice, Defense, and the National Security Adviser … the Chief Justice, the Ombudsman, the Chairperson of the Human Rights Commission … and with numerous members of the Armed Forces of the Philippines (AFP) and of the Philippines [sic] National Police (PNP) … many civil society representatives from across the political spectrum … witnesses to 57 incidents involving 96 extrajudicial executions … and, reviewing “detailed dossiers regarding 271 extrajudicial executions.”

It’s significant to note that the UNSR reckons 2001 as the beginning of the rise in extrajudicial killings.It’s the same year Gloria Arroyo assumed the presidency.

In his report, the UNSR tracked the history behind most extrajudicial killings and found its beginnings with the counter-insurgency activities of the AFP against the Communist Party of the Philippines (CPP) and the latter’s military arm, the New People’s Army (NPA), and civic arm, the National Democratic Front (NDF).He found that “victims have disproportionately belonged to organizations that are members of Bagong Alyansang Makabayan (Bayan), … or that are otherwise associated with the “national democratic” ideology also espoused by the CPP/NPA/NDF”.

The UNSR found that due to its nationwide presence, the CPP/NPA/NDF have been deemed by the AFP as the biggest threat to national security.Never mind that communism has proven a failure worldwide or that the evidence against the victims are flimsy.The AFP’s strategy is to dismantle what they consider communist “fronts” regardless of whether they are actual communist fronts or communist at all.Whether it means scaring, torturing, raping or murdering people, the AFP doesn’t seem to care.

“There is impunity for extrajudicial executions” claims the UNSR. He determined that:

the establishment of the Inter-Agency Legal Action Group (IALAG) whose “central purpose is to prosecute and punish members of the CPP and its purported front groups”,

the PNP’s “fear [or] tacit understanding that crimes by the AFP should not be investigated [or] the personal bonds felt among senior AFP and PNP officers, and the solidarity fostered by current cooperation in counterinsurgency operations”,

the fact that the “Ombudsman’s office has done almost nothing in recent years to investigate the involvement of Government officials in extrajudicial executions”,

the slowness of the justice system,

the fact that the “executive branch has stymied the legislature’s efforts to oversee the execution of laws” (especially by claiming executive privilege to prevent any investigation of military officers), and,

the legislature’s failure “to exercise its constitutional authority to block the promotion of military officers implicated in human rights abuse”,

The first ever petition for a writ of amparo was filed inevitably against the government (against not just one or a group of officials or one department but many, leaving little room to doubt the government-wide policy on extrajudicial punishment).We know of no petition to date ever filed against a private individual.Makes sense really since the rule on the writ of amparo was made precisely to address the rising number of desaparecidos and extrajudicial killings.

The Supreme Court decision on the petition is replete with accounts of abduction, torture, rape and murder.But don’t take our word for it, here are excerpts of brothers Raymond and Reynaldo Manalo’s court testimonies after their escape from military detention:

“The next day, Raymond’s chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go home and be with her parents.

xxx

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel [Merino], were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as “Mar” and “Billy” beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising livestock.”

There’s so much more to the Manalo brothers’ ordeal and a reading of the complete SC decision is highly recommended just to have an idea of what they went through or what others may have gone through but are no longer able to tell their tales.The above accounts even barely discuss the role of The Butcher (as he is popularly known), now Congressman (Ret. Major-General) Jovito Palparan.There’s more about the congressman in the lengthy case decision.Although he really does deserve a case (or more) of his own.

“7. Notwithstanding the assurances provided by the [Philippines] to the Committee that “torture or ill-treatment on suspects or detainees is not tolerated or condoned by the Philippine National Police (PNP) and that erring PNP personnel are dealt with accordingly”, the Committee is deeply concerned about the numerous, ongoing, credible and consistent allegations, corroborated by a number of Filipino and international sources, of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings …

xxx

9. ... The Committee reiterates its grave concerns over the climate of impunity for perpetrators of acts of torture, including military, police and other State officials, particularly those holding senior positions that are alleged to have planned, commanded or perpetrated acts of torture …

10. … the [Philippines] has not incorporated into national law the crime of torture as defined in article 1 of the Convention. While noting information provided as to the recent passage of the Anti-Torture Bill in the House of Representatives, the Committee is concerned at the delay in legislating on this matter…

11. The Committee is deeply concerned about the de facto practice of detention of suspects by the PNP and the Armed Forces of the Philippines (AFP) in detention centers, safe houses and military camps. Although authorities are required to file charges within 12 to 36 hours of arrests made without warrants … lengthy pretrial detention remains a problem, due to the slow judicial process. The use of arrests without warrants is reportedly extensive, and criminal suspects are at risk of torture and ill-treatment …

15. … the Committee is concerned at the high number of complaints of torture and ill-treatment by law enforcement officials, the limited number of investigations carried out by the State party in such cases, and the very limited number of convictions in those cases which are investigated. Additionally, these bodies lack independence to review individual complaints about police and military misconduct.

xxx”

And these findings were just this April when the government first made its report to the UNCAT, 16 years late as the UNCAT noted.

Extrajudicial Punishment and Culture of Impunity

Why the culture of torture and impunity?Well, there’s apparent unprofessionalism in the military leadership and among its ranks.The military seems to focus on a dying and shrinking group of ideologues.The CPP/NPA/NDF members are likely just fighting poverty and oppression like most Filipinos.It is communism that may be the ‘front’ not the other way around. But the ‘communists’ seem to be the easy targets.Those tagged as ‘communists’ or ‘leftists’ are usually peasant farmers and laborers, you know, the common folk.

Why don’t we hear of suspected Abu Sayyaf detainees? There are bombings and kidnappings regularly linked to them.Could it be that the Muslim extremists are the real menace to peace and order and, therefore, more difficult to fight?

Next, the government is beholden to the military.It continuously needs the military to crush any budding people power revolution against its regular excesses (not to mention Arroyo’s gratitude for the military support she got in order to grab power in the first place).

So, after reading the above accounts and findings, who can still believe that Fil-Am Melissa Roxas is lying about her allegations of abduction and torture?We’ve long needed some impetus to pry us from our jadedness towards the government and its military’s abuses.Is the time now?Or will we continue our fatalism and just pray for their karma, karma, karma …

As Melissa Roxas has complained to her own government, it does seem ironic that we could be looking towards the U.S. to help rein in our military.The Americans’ policy of extraordinary rendition as well as practices at Abu-Ghraib and Guantanamo are quite known.Who knows? Our military might just end up being welcomed to the club.

[1]U.N. General Assembly.Human Rights Council, Eighth Session.Promotion And Protection Of All Human Rights, Civil, Political, Economic, Social And Cultural Rights, Including The Right To Development: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,

[3]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.

[4]Committee against Torture, Forty-second session. Consideration Of Reports Submitted By States Parties Under Article 19 Of The Convention: Concluding observations of the Committee against Torture (CAT/C/PHL/CO/2). 14 May 2009.

Sunday, July 5, 2009

In world where most parts are rapidly modernizing, where diversity finds less and less room in the mainstream, and where indigenous culture is at risk of being marginalized, it is important to acknowledge, respect, uphold, and protect cultural diversity.

It is in respecting cultural diversity that we respect each other’s differences, learn from each other’s origins and perspectives as well as foster mutual understanding.

1)The Darangen Epic of the Maranao People of Lake Lanao “celebrates episodes from Maranao history and the tribulations of mythical heroes … explores the underlying themes of life and death, courtship, love and politics through symbol, metaphor, irony and satire … [and] encodes customary law, standards of social and ethical behaviour, notions of aesthetic beauty, and social values”[4]; and

2)The Hudhud Chants of the Ifugao which “tell about ancestral heroes, customary law, religious beliefs and traditional practices, and reflects the importance of rice cultivation.”[5]

Indonesia’s Wayang Puppet Theatre, Japan’s Kabuki Theatre, and Turkey’s Mevlevi Sema Ceremony (famous for their whirling dervishes) are also among the 90.You can check out all 90 elements from UNESCO’s Intangible Heritage Lists page.

Now how are these cultural elements determined and inscribed? Well, read on.

What is Intangible Cultural Heritage (ICH)

First of all, we need to define ICH.Under Art. 2.1 of the Convention, these are: “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.”

And “consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.”So, it’s unlikely any cannibalistic culture will be protected.

Now, let’s see how a piece of culture can get on either of the 2 lists.

The Representative List of the Intangible Cultural Heritage of Humanity

The element constitutes ICH as defined in Article 2 of the Convention.

Inscription will contribute to ensuring visibility and awareness of the significance of the ICH and to encouraging dialogue, thus reflecting cultural diversity worldwide and testifying to human creativity

Safeguarding measures are elaborated that may protect and promote the element.

The element has been nominated following the widest possible participation of the community/group/individuals concerned and with their free, prior and informed consent.

The element is included in an inventory of the ICH present in the territory(ies) of the submitting State(s) Party(ies), as defined in Art. 11 and 12 of the Convention.

In connection with criterion 5 above, Art. 11 obligates each state to: a) take the necessary measures to ensure the safeguarding of the ICH present in its territory; and b) identify and define the various elements of the ICH present in its territory, with the participation of communities, groups and relevant NGOs.

Art. 12, on the other hand, obligates each state to make inventories 1) of the ICH present in its territory to ensure identification with a view to safeguarding the elements, which inventories are to be regularly updated; and 2) shall provide relevant information on such inventories during its periodic reports to UNESCO as required under Art. 29.

List of Intangible Cultural Heritage in Need of Urgent Safeguarding

Under Par. 1 of the Operational Directives (almost the same requirements for getting on the Representative List), each element must meet all of the following:

The element constitutes ICH as defined in Article 2 of the Convention.

a.The element is in urgent need of safeguarding because its viability is at risk despite the efforts of the community/group/individuals and State(s) Party(ies) concerned; or

b. The element is in extremely urgent need of safeguarding because it is facing grave threats as a result of which it cannot be expected to survive without immediate safeguarding.

Safeguarding measures are elaborated that may enable the community/group/individuals concerned to continue the practice and transmission of the element.

The element has been nominated following the widest possible participation of the community/group/individuals concerned and with their free, prior and informed consent.

The element is included in an inventory of ICH present in the territory(ies) of the submitting State(s) Party(ies), as defined in Articles 11 and 12 of the Convention. (See Art 11 and 12 in relation to the Representative List above)

In cases of extreme urgency, the State(s) Party(ies) concerned has (have) been duly consulted regarding inscription of the element in conformity with Article 17.3. This means the element need not be nominated by the State Party – the General Assembly can inscribe on its own - but the State Party must still be consulted about the inscription.

We hope to help people’s awareness of the World’s Intangible Cultural Heritage and support UNESCO’s drive to acknowledge and preserve the different cultures of the world and the different forms they are expressed.

[1] Convention for the Safeguarding of Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006).

[2]List of the 90 Masterpieces of the Oral and Intangible Heritage of Humanity proclaimed by UNESCO. Retrieved June 18, 2009, from United Nations Educational. Scientific and Cultural Organization Web site: http://unesdoc.unesco.org/images/0014/001473/147344e.pdf

[3]Proclamation of the Masterpieces of the Oral and Intangible Heritage of Humanity. Retrieved June 18, 2009, from United Nations Educational. Scientific and Cultural Organization Web site: http://www.unesco.org/culture/ich/index.php?lg=EN&pg=00103

[4]The Darangen Epic of the Maranao People of LakeLanao. Retrieved June 17, 2009, from United Nations Educational. Scientific and Cultural Organization Web site: http://www.unesco.org/culture/ich/index.php?RL=68

[6]Operational Directives For The Implementation Of The Convention For The Safeguarding Of The Intangible Cultural Heritage. Retrieved June 18, 2009, from United Nations Educational. Scientific and Cultural Organization Web site: http://www.unesco.org/culture/ich/doc/src/00410-EN.pdf